State officials have slowed their plan to impose an emergency ban on workplace smoking, choosing instead to hold public hearings -- a move that will likely delay the ban for several months.
The move makes the proposal less immediately vulnerable to legislative and lobbyists' pressure, although the proposal seems destined for a long political and perhaps court battle nevertheless.
The state's Occupational Safety and Health Advisory Board voted yesterday to hold public hearings on the smoking-ban proposal in Frederick and Annapolis on Dec. 9 and 16. It hopes to vote on the plan in early January.
Yesterday's decision marked a change from the previously announced strategy of William A. Fogle Jr., the state's secretary of licensing and regulation, who had said Oct. 28 that he would impose a smoking ban quickly, using emergency powers.
But Nancy Burkheimer, assistant secretary of the licensing department, told the board yesterday that after consulting with members of the attorney general's staff, Mr. Fogle had changed his mind and would now go through hearings and the normal, slower regulatory route. She said she was speaking for the secretary because Mr. Fogle was on vacation this week.
If the secretary had imposed emergency regulations, a legislative committee, the Joint Committee on Administrative, Executive and Legislative Review, would have had the power to kill the proposal. But that committee cannot veto regulations that pass through the usual regulatory process.
The Senate chairwoman of the joint committee, Paula C. Hollinger, a Baltimore County Democrat, said that although her committee no longer has veto power over the proposal, it may still hold a hearing on the bill. "We can hold a hearing," she said. "We can request changes."
In addition, she said, a turf battle may erupt over the proposal. "I did get a call from one of the other senators who did not feel it should be handled by regulations," she said. "Many legislators feel that this is our domain -- public policy."
The proposal may not fare well in the General Assembly. Bruce C. Bereano, a lobbyist for the tobacco industry, said yesterday that similar bills to ban workplace smoking have been killed by other legislative committees for the past three years. And he said he plans to fight the current proposal in the hearings, the legislature and, if necessary, in the courts.
Mr. Bereano said he believes that the secretary has neither the authority to ban smoking nor the evidence that smoke is a workplace hazard.
"I will be taking this to court," he said. "It will be a very long time" before the issue is resolved.
Eric Gally, a spokesman for the Maryland Coalition on Smoking OR Health, said last night that he was glad that the state had slowed its proposal and that he still expected to win a ban.
He said he believed that Mr. Fogle wanted to respond quickly to a fatal explosion at a Baltimore school that is believed to have been caused by cigarettes, but then realized it would be wiser not to move so quickly.
"This is not something we wanted to cram down people's throats," Mr. Gally said.
The proposed ban released yesterday is a simple and sweeping statement requiring all employers to bar all employees from carrying or using any lighted tobacco product in their workplaces. The proposal seems to disallow smoking rooms that many employers have set aside for tobacco users.
It left unanswered many questions, like whether certain employers would be allowed to smoke and whether independent contractors would be governed by the proposals. It also omitted mention of smoking by customers or other visitors.
But Ms. Burkheimer said that the state was willing to change the proposal. "We are not wedded to what is here," she said. "We can develop additional language" to address the concerns of employers and workers.
Ms. Burkheimer told the board that the state wanted to act because four counties are considering similar anti-smoking legislation and may be overreaching their authority.
She said that the four counties -- Anne Arundel, Howard, Prince George's and Talbot -- are considering restrictions on smoking in public places that could improperly affect workplaces.
"We are very confident they do not have the authority" to ban workplace smoking, Ms. Burkheimer said. "We are confident that only this board has the authority to venture into the workplace."